Starting in May of this year, Kevin has been posting LinkedIn Legal Updates, available automatically to everyone on his LinkedIn network.
The following post from the series is specific to Health and Safety. Other topics covered to date include the Discount Rate, Contributory Negligence and Limitation. To access the series in full, connect with Kevin on LinkedIn
HEALTH & SAFETY: A CONCENTRATION ON CORPORATE MANSLAUGHTER
Health and Safety Offences
Your client, like you, will not likely find themselves facing criminal charges for robbery, murder, or assault. However, they may find themselves faced with a major Health and Safety investigation, even without any apparent direct fault of their own. There are many legal provisions which govern reportable and criminal incidents within the NI jurisdiction and unfortunately, there is not one “catch all” piece of legislation to refer to so solicitors, like McKinty &amdWright, need to be aware of an array of legislation across the ever-developing area of Health and Safety Law to keep our client’s informed and protected.
Offences can arise from a range serious incidents, from a small manual handling incident to a fatal injury, and can result in large fines or even imprisonment. Some typical Offences can be found in the following Legislation:
- Street Works (NI) Order 1995
- Water (NI) Order 1999
- Health & Safety at Work (NI) Order 1978 (HSWO 1978)
- Workplace (Health, Safety and Welfare) Regulations (NI) 1993
- Provision and Use of Work Equipment Regulations 1998
- Control of Asbestos in the Air Regulations 1999
- Asbestos Regulations 1961
However, in this article I am going to give a brief description of just one – Corporate Manslaughter.
Corporate Manslaughter & Corporate Homicide Act 2007
The CM&CH Act 2007 states that a Company can be guilty of this offence if the way in which its activities are managed or organised -
- causes a person's death; and
- amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased, and
- a substantial element of that breach was in the way those activities were managed or organised by senior management.
The Major Elements of the Offence are:
Causes Death: the breach need not be the sole cause of death but a causative factor – i.e. “but for” the breach the incident may not have occurred.
Gross Breach: This is an issue for the jury at any Trial however will usually constitute a serious and obvious risk of death from the specific act being undertaken or, where the risk of death was small but the way senior management approached health and safety was so lax, that an accident was always likely to occur in some way, and the breach was a more than minimal contribution to the death. The jury’s consideration of attitudes, policies, systems of work and accepted practices is encouraged by the court.
Breach of Duty of Care: One that is owed under the civil law of negligence, and does not relate to any Statutory Duty under Health & Safety Law. This includes a duty of care to employees, visitors, trespassers, and anyone else you may foresee who may be affected by your action/omission. It is not however owed to persons affected as a result of “policy decisions” made by the Company – for example the allocation of funds to one source but not another.
Senior Management: The term 'senior management' is defined within section 1(4) to mean those persons who play a significant role in the management of the whole, or a substantial part of the, organisation's activities. The contribution of “senior management” is a substantial element of this offence. By way of example a store manager of a national supermarket may not be considered “senior management” (Tesco v Nattrass ) but a managing director could (ICR Haulage Ltd ).
This offence is indictable only and, upon conviction, the judge may impose an unlimited fine (section 1(6)).
The PSNI are likely to take the lead investigatory role in the event of a death at work, however the HSENI is likely to work alongside them. They will consider how the fatal activity was managed, or organised, throughout the organisation, including any systems and processes for managing safety and how these were operated in practice. The fault of a number of individuals may be used to imply management or organizational failure causing death. This is where evidence of working practices, risk assessments, training and organization is essential.
The decision to prosecute for this offence is taken by the Public Prosecution Service (PPS). The HSENI may add additional charges for breach of Health & Safety Law at the same time, or make a decision to prosecute for such offences at a later date (s19). This offence is only triable against a Company as a body corporate and not against any individual, however it must also be bore in mind that the PPS may bring an alternative prosecution against an individual for gross negligence manslaughter if there are sufficient grounds.
Upon conviction, the court may impose an unlimited fine and will make a Publicity Order, under Section 10 of the Act, publicising the breach and conviction. According to the Sentencing Guidelines which are provided to the Judiciary - the offence of corporate manslaughter will ordinarily involve a level of seriousness significantly greater than a health and safety offence, because it requires a gross breach at a senior level. The judiciary are advised that any appropriate fine should seldom be less than £500,000 and can be measured in millions of pounds, however should take into consideration the finances of the firm and the circumstances of the case at all times.
Although many cases can be prevented by regular review of Health and safety procedures, a legal audit of the business, and ongoing vigilance, this is not always possible and should your client, or company, face a HSENI or PSNI Investigation, handled well, same represents an opportunity to present one’s own case in the event of a trial, or the opportunity for mitigation in the event of a sentence. Careful consideration needs to be given to what is said and/or done at each point of interaction with enforcement agencies, by all members of staff, and each interaction may require criminal defence legal advice, therefore, it is recommended that your client, or your firm, should identify and retain a defence solicitor to assist in the development and implementation of relevant procedures and in the management of a Company’s response to a criminal investigation, and to support management and staff in their interaction with enforcement agencies, from the very beginning.
McKinty and Wright are involved with major incident planning for companies with over 1,000 employees, deal with Regulatory criminal matters covering areas such as Health and Safety breaches, Disciplinary Proceedings before Professional Governing bodies (for example the Pharmaceutical Society of Northern Ireland), prepare Directors for PACE interviews, and advise large companies during PACE interviews.
If you, or your client, require assistance, contact Kevin O’Hagan